2012 California Proposition 36

Proposition 36 was predated by two major trends since the late 20th century: rapidly increasing incarceration rates and the expansion of the private prison industry. Beginning with the 1970s, President Richard Nixon announced the "war on drugs," which led to 'tough on crime' policies by a range of politicians. Changes included mandatory minimum sentencing, harsh penalties barring inmates from being granted parole or probation, and stricter punishments for drug users both in and out of the prison.[5] Neither party wanted to appear "soft on crime", and criminalization of minor offenses continued, resulting in high rates of incarceration. In response to but surpassing the growing numbers of inmates, the private prison industry expanded nearly 1600% between 1990-2009.

By 2011, private prison companies were responsible for about 6% of state prisoners and 16% of federal prisoners.[5] Corrections Corporation of America (CCA), for example, in 2011 owned and operated 66 facilities, and it earned $1.7 billion in revenue. The rate of private prison expansion far outpaced the rate of overall growth in incarceration.[6] By 2015, the two largest prison companies derived from 45 to 50% of their revenues from federal contracts and had incentives to keep prisons full.

As a result of the continuing war on crime in the 1990s, numerous states passed what are known as Three Strikes laws. Between December 1993 and January 1996, twenty-four states passed such laws, which were designed to punish repeat felons. Under these laws, criminals convicted of a second felony must receive a sentence twice as harsh as a first-time offender. A criminal convicted of a third felony, regardless of its violence or severity, is to be sentenced to a mandatory minimum of 25 years to life imprisonment. These laws limited the judges’ ability to exercise discretion when sentencing repeat criminals and required lengthy sentences even for non-violent crimes. Poor people of color have been disproportionately affected by the high rate of incarceration for even relatively minor offenses. In 2016 the United States had 5% of the population in the world and 25% of the world's prisoners.[7]

The first Three Strike Law was passed in Washington State, with overwhelming support from the voters. Its passage was attributed to public outrage over the murder of Diane Ballasiotes, who was kidnapped, raped, and brutally stabbed by Gene Kane Jr., an escapee from Seattle work-release. Similar outrage in California arose over the murders of Kim Reynolds and Polly Klaas, both of whom were killed by repeat felons. California also passed a three strike law.[8]

The three-strikes laws were representative of prevailing public dissatisfaction with the states’ policies regarding repeat offenders. Studies suggest that public concern is related to fears about threat related to crime, a threat repeatedly emphasized by politicians seeking support for re-election, and an opinion that courts were not dealing with it adequately. Most people have a fear of crime that does not realistically relate to their risk. Psychologists Zimring and Hawkins suggest that people are motivated to protect themselves and their communities from threats and thus support severe punishment.[8] Also, people are motivated to punish criminals because rule-breaking behavior poses a threat to the moral cohesion of society; punishment reasserts social value and the obligation to obey social rules.[8]

Since Three Strikes has gone into effect in California, a number of studies have examined the effects of the law on sentencing patterns and crime levels. Overall, results from these studies have been mixed, with some concluding that Three Strikes has reduced crime rates, while others arguing it has had little impact if any.

A 1994 study by analyst Peter Greenwood and colleagues at RAND assessed potential effects of the proposed law.[9] Relying mostly on projected data from statistical models, the authors predicted that three strikes could result in up to a 28% reduction in serious or violent crime, but questioned whether or not the public would be willing to fully fund the bill's estimated cost of $5.5 billion to support a much larger prison population serving lengthy sentences.

A study published in 2001 by Franklin Zimring and colleagues assessed the effects over several years of implementing the law and reached a more negative conclusion about its efficacy.[10] Zimring examined samples of felony arrests from three major California cities between 1993 and 1995, and found that the group targeted by Three Strikes, namely people who had committed one or more serious or violent offenses, accounted for 10% of the total crime prior to the law's enactment; they did not differ significantly from the average criminal population. In terms of the law's effects, the study found that second-strike offenders were more likely to be punished, as well as to receive a longer average prison sentence than before, while third- strike offenders were sentenced to lengthier punishments.[10] The authors conclude that Three Strikes could not be solely responsible for the large drop in aggregated California crime rates over the 1990s. This trend began before Three Strikes was enacted and continued at roughly the same rate of reduction afterward.[10] Zimring argues that the law had only a weak deterrent effect on crime at best.

A 2002 study conducted by Joanna M. Shepherd claimed that both of the above studies underestimate the deterrent effect of the law because they examined only what she calls "partial deterrence" effects of three strikes: that is, deterring of those criminals committing a third strike.[11] She suggests that if this was the case, the expected result would be a small general decrease in all felonies, as any felony can qualify for a third-strike offense. Using statistical regression models, Shepard found that the result was a stronger decrease in serious or violent felonies that qualify for first and second strikes; she concluded that the Three Strikes law deterred the general criminal population as well.[11] She attributed the deterrence of nearly 400,000 crimes, the vast majority of which are burglaries, to the law in its first two years of enactment.[11]

A 2001 study by criminologists Marvell and Moody found that homicide rates increased following the passage of Three Strikes Law. The authors argued that criminals, even when committing relatively minor crimes, were more motivated after the law to murder victims, witnesses, or law enforcement personnel in order to avoid apprehension and the mandatory harsh sentences. They found that the law would increase the total number of homicides in states enforcing three strikes laws by approximately 17%.[12]

A study published in 2012 by John Sutton focused more on the law's effects on sentencing and imprisonment.[13] Sutton evaluated whether or not probability and severity of sentencing increased under Three Strikes, whether or not average sentencing uncertainty declined, and whether or not race played a significant role in sentencing before and after Three Strikes. He concluded that Three Strikes did increase the number of prison sentences and their average length in California. However, he also found that there is "no evidence of systematic prosecutorial manipulation" as a result of Three Strikes sentencing.[13]

In terms of race, Sutton found that black defendants were more likely to receive longer sentences under Three Strikes, but did not find other race-related effects of Three Strikes.[13] He highlights the singular nature of this finding as worthy of further study.

Despite Proposition 184's easy passage, by the early 2000s many California citizens were beginning to consider reforming the law. Some common criticisms of the law include it resulting in prison overcrowding, inconsistent application of the law across the state, increasing costs of funding the growing prison population, and disillusion with particular applications of Three Strikes Law to minor offenses.

The proposition was passed on November 6, 2012, with 8,575,619 people (69.3%) voting Yes and 3,798,218 people (30.7%) voting No.[24] It passed by a majority in all counties of the state. It was most strongly supported in San Francisco (84.5%), Marin (83.2%), and Alameda (78.6%) counties. Madera county passed it with a slight majority of 52%.[4]

Due to its relatively recent passage, a thorough analysis of its implementation and effects has yet to be conducted. However, Stanford Law Three Strikes Project at Stanford Law School and the NAACP Legal Defense and Education Fund compiled a preliminary report of the progress of Proposition 36 in October 2013.[26] The report said that more than 1,000 prisoners had been released as a direct result of Three Strikes reform.[26] The report also found that Proposition had already saved California $10–13 million, and projected up to $1 billion in savings in the next ten years.[26] The report found the recidivism rate of released third strikers to be 2%, a rate dramatically lower than the statewide average of 16% of past inmates committing new crimes within 90 days of release.[26] More than 2,000 additional inmates were awaiting resentencing review. The urgency with which county courts have reviewed these petitions has varied widely: San Bernardino has reviewed 73% of eligible petitions and Los Angeles has completed review of 19%.[26] Of the petitions filed, 66% are pending, 32% have been granted, and 2% have been denied.[26] The very low denial rate of release suggests that judges and prosecutors have concluded that a majority of the third strikers qualifying for review under Proposition 36 do not pose a threat to society.

That portion of Proposition 36 relating to sentencing of current repeat felons convicted of a nonviolent, non-serious third felony has been implemented statewide. Such individuals have been sentenced to twice the length of a sentence of a criminal convicted of that crime as a first offense.